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Glossary of legal terms

This brief explains the most common legal terms and phrases used in employment law.

Action

The lawful demand of one’s right by use of legal proceedings.

Civil - brought to enforce a civil right

Penal - aimed at some penalty or punishment in the party sued

Criminal - of public nature against one or more person’s accused of crime

Arbitration

A voluntary but binding arbitration is available where an applicant is pursuing an unfair dismissal claim. The applicant must receive independent advice and the parties must agree in writing to be bound by the decision before proceedings. The hearing is private, there is a bar on any further tribunal hearing on the claim and the arbitrator can award reinstatement or compensation. The decision of the arbitrator is final. There is no appeal to the EAT (Employment Appeals Tribunal).

Breach

An invasion of a right or violation of a duty.

Fundamental Breach - breach of a fundamental term going to the very root of the contract.

Burden Of Proof

The duty of proving one’s case. In employment cases this varies between the employer (respondent) and the employee (claimant). Where there is a claim for unfair dismissal – other than constructive dismissal - the burden rests on the employer. See below for constructive dismissal. Where there is a claim for discrimination or equal pay the burden rests on the claimant in the first instance. Once the claimant has provided evidence from which an employment tribunal can draw an inference that discrimination has occurred, the burden shifts to the employer who must then show a non-discriminatory reason for the acts complained of.

Causation

Link between the cause of action and its effect i.e. link between the accident and the injury in a personal injury claim, or between an act and a protected characteristic in a discrimination claim.

Cause of action

Legal principles on which a given action is grounded.

Compensation

Money paid for damage caused by any wrong or breach of contract, or to persons defrauded or injured by any criminal offence.

Compromise agreements

A written, binding, and private agreement covering a specific complaint. The agreement has the effect of barring further proceedings. This type of agreement is only valid if an employee has received advice from a relevant independent advisor.

Consideration

A compensation for something promised or done. Valuable consideration turns a promise into a binding agreement.

Constructive dismissal

Where an employer’s treatment of an employee left them with no option but to resign because the employer’s action amounted to a fundamental breach of the contract of employment. The action must be so serious such as to demonstrate that the employer no longer wished the employment relationship to continue. The employee must be able to identify the act that breaches the contract, and must then resign in response to that breach without undue delay. The act may be a “final straw” in a series of less serious acts. Claims for constructive dismissal are generally the most difficult to win, especially since the burden of proof lies with the claimant.

Contract

A legally binding agreement upon legal consideration (see above) to do or abstain from doing some act. A contract may be written or verbal.

Contributory negligence

Negligence, by which a person contributes to the happening of an accident to him or herself, for which others are partially, or even mainly responsible. The injured person will not be entitled to recover full damages for the injury if it can be shown that, except for his or her negligence, the accident would not have occurred.

Counterclaim

Where a defendant also has a claim against the plaintiff. Usually the court pronounces a final judgement in the same action on both the claim and counterclaim.

Custom

An unwritten law that gained its validity through long use. General Custom (Common Law) - unwritten law that has developed over the years based on the content of judicial decisions. This is in opposition to statute law; law enacted by Parliament. Particular Custom - The customs of a particular district that affect only members of that district.

Damages

The satisfaction awarded by a judge or jury in a civil action for the wrong suffered by the plaintiff. Normally damages are claimed for pain and suffering, inconvenience and for future financial losses.

Defence

The statement of the defendant in answer to the plaintiff’s claim.

Defendant

A person sued in a civil action or charged with a criminal offence.

Discharge

Releasing the parties of the contract from their obligations under that contract.

Dismissal

A person may be dismissed if the employment contract is terminated because of the conduct or capability of the employee, a fixed-term contract is not renewed, the employee leaves (claiming this is a result of the employer’s conduct), a redundancy takes place, a woman is not allowed to return to work after maternity leave, the employer claims there has been a "self dismissal", there is a refusal to re-employ after a transfer, there is a statutory reason why the employee cannot continue to be employed or for “some other substantial reason”.

Discrimination

The law prohibits discrimination on the specific grounds of nine protected characteristics:

- age

- disability

- gender reassignment

- marriage or civil partnership

- maternity or pregnancy

- race

- religion or belief

- sex

- sexual orientation.

There are four types of discrimination:

- direct

- indirect

- harassment

- victimisation.

Duty of care

The duty of care owed by all persons is a duty to take reasonable care not to do anything likely to injure a "neighbour" (i.e. road users have a duty of care to each other). Breach of the duty gives the right to claim damages.

Equality clause

Operates in every employment contract, giving women the right to equal pay and treatment with men. The Equality Act 2010 states that women have the right to equal pay where they are employed on "like work" with a man, on "work rated as equivalent" to a man’s or on "work of equal value" compared to a man’s.

Express

That which is not left to implication, e.g. an express promise or covenant. Express term - a clearly stated/written part of the contract.

Fixed term contract

A contract for a fixed duration that cannot be ended before that time other than by breach.

Frustration

The prevention of the carrying out of a contract due to the occurrence of an intervening event or change of circumstances so fundamental as to be regarded by the law as striking at the root of the agreement. The event makes the contract impossible to perform.

Harassment

Harassment - defined as: unwanted conduct related to a relevant protected characteristic and where the conduct has the purpose or effect of violating the subject’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive.

Implied term

A term not stated but established by indirect or circumstantial evidence, by previous dealings, or presumed in certain circumstances to exist in the absence of evidence to the contrary.

Indefinite term contract

Contract of employment that keeps running until reasonable notice is given by either side.

Injunction

An alternative to claiming breach of contract. An injunction may be used to stop an employer from changing the contract unilaterally.

Issue

The point or matter arising out of the allegations and pleas of the plaintiff and defendant in a case.

Issuing proceedings

When the action actually begins i.e. when the summon/writ is stamped and sealed by the Court.

Letter before action

A letter written setting out the basis of the claim and asking for a response before issuing proceedings.

Liability

Legal responsibility for the action

Limitation period

Period during which the action should commence. No Court will entertain proceedings for the enforcement of certain rights if such proceedings were begun after this period.

Liquidated claim

Claim for a fixed amount of compensation/damages (ie a debt)

Litigant in person

Someone defending a claim themselves without the help of a solicitor/barrister. This occurs most often during arbitration proceedings and may occur in employment tribunals where either the claimant or the respondent may represent themselves.

Minimum wage

The minimum level of pay to which almost all workers in the UK have a legal right. The minimum hourly rate was set at £5.93 an hour for those aged 22, £4.92 for 18-20 year olds, £3.64 for 16-17 year olds and £2.50 for apprentices 1 October 2010. From 1 October 2011 the rates will be £6.08, £4.98, £3.68 and £2.60 respectively.

Misrepresentation

Either by words or conduct, misrepresentation, must be a false statement of fact. The statement is made by one party to the other of a contract which although not a term of the contract induces the other party to enter into the contract.

Mitigation

Legal principle that the plaintiff (claimant) should take reasonable steps to limit the loss suffered as a result of the defendants (respondents) wrong doing.

Mobility clause

A clause in a contract which provides that an employee should move location of employment when requested. This does not necessarily give the employer unlimited rights to transfer workers and the issue of whether the effect of the clause is discriminatory should also be considered. A relocation can, in certain circumstances, amount to constructive dismissal.

Negligence

When a legal duty of care has been breached by omission of a positive duty which leads to damage suffered by the Plaintiff. The question of negligence is one of fact.

Neighbour

Anybody you could reasonably foresee to be damaged or injured by your actions.

Next friend

An adult under whose protection an infant institutes an action or another legal proceeding. This adult is responsible for the conduct and the costs of the proceeding.

Particulars of claim

A plaintiff or defendant is required to give a statement in summary form of all material facts on which he relies for his claim or defence. (A pleading)

Plaintiff

A person bringing an action.

Pleadings

A formal document in writing or print between the parties in a suit or action; in this document, each side states their allegations of relevant facts and each side states their position.

Privity of contract

The relationship between parties which mutually sign the same contract. Only a person who is a party to a contract may sue on that contract.

Proceedings

The formal legal process of dispute resolution in an action or other legal proceeding.

Quantum

Monetary value of the action.

Redundancy

When a worker is dismissed if the employer has ceased, or intends to cease carrying on the business; or the requirements for employees to carry out work of a particular kind, or to carry it out in the place in which they are employed have ceased or diminished. A worker may receive redundancy pay as compensation for loss of his or her job.

Re-engagement

Where an employee is re-employed by the employer on different terms but in comparable work.

Re-instatement

Where an employee is re-employed by the employer on the same terms and in the same job.

Remedy

The compensation given by the court or tribunal for the infringement of a right or for the recovery of a right.

Remoteness of damage

There is a lack of direct connection between a wrong complained of and the injury alleged to have been sustained by it. One may not recover from it.

Repudiatory breach

When a party bound by contract refuses to perform the contract or a significant part of it.

Rescission

The cancellation of a contract putting the parties back into the position they would have been in had the contract never been made.

Restrictive covenant

A term in a contract of employment which prevents an employee from doing certain things after leaving that employment. Examples include:

- non solicitation - an employee is bound not to poach work from his or her ex-employer;

- non competition - an employer is bound not to go into competition with his or her ex-employer;

- confidentiality - where an employee is not to divulge employers confidential information.

Revocation of an offer

The cancellation of an offer, by the person who had made the offer, before it is accepted.

Service of process

The delivery of a writ, summons, or notice to the defendant. The service is complete only after the defendant receives the document.

Special damages

Damages claimed for quantifiable losses from the accident to the trial itself (i.e. wages).

Specific performance

Carrying out a contract in accordance with its terms.

Statement of claim

The statement by the plaintiff to the High Court of Justice of the ground of his or her complaint and of the relief or remedy to which he or she claims to be entitled. An equivalent statement in an employment tribunal that details the loss suffered by an employee as a result of a dismissal or discriminatory act. In discrimination claim the statement of loss can include an amount for injury to feelings.

Strict liability

Where the defendant is held liable if the plaintiff suffers damage without the plaintiff having to show the defendant was at fault/negligent.

Summons

An order to appear before a judge or magistrate and is a court document used to commence proceedings. The summons contains a brief outline of the case including the claim made and of the relief or remedy being sought.

Third party

One who is a stranger to proceedings between two other persons. A third party may be drawn into an action, under order of the court or judge, by a defendant who blames the third party.

Tort

A civil wrong independent of contract that gives rise to a claim in damages.

Unfair dismissal

Where an employee is dismissed for certain statutory reasons and is shown to be inequitable and is beyond the band of reasonable responses.

Unliquidated claim

Claim for an unspecified amount of damages/compensation to be decided by the Judge i.e. damages for personal injuries, distress or inconvenience etc.

Unliquidated damages

Damages the amount of which in money is not ascertained, ie in cases of libel, slander, assault, etc.

Vicarious liability

Where an employer is held liable for a tort committed by an employee in the course of their employment.

Waiver

The abandonment/relinquishing of a right by one party, so that afterwards he or she is no longer allowed to reclaim it. The claim may be abandoned expressly or by actions.

Writ

The High Court commands, by document, the commencement of proceedings.

Wrongful dismissal

Dismissal in breach of a contract and can include dismissal without proper notice. Proper notice amounts to one week if one has worked between one month and two years, proper notice is one week for each year one has worked if one has worked between two and twelve years – or that such amount of notice that appears in the individual employee’s contract of employment.

The briefs in this section provide guidance and some basic details of employment rights. They do not attempt to be comprehensive, and should not be taken as an authoritative statement of the law.